This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Malaysia's trade unions operated in an uncertain political atmosphere during 2011. Legislation to amend the existing employment law was passed by Malaysia's lower house of Parliament. The amendment, if enacted, would allow employers to use contract or agency labour to avoid union representation and other statutory obligations for workers.

Background

According to Malaysia's trade unions, wages in the country have been depressed, in part because of the availability of cheap migrant labour particularly in the construction and manufacturing sectors. Malaysia's unions struggled to win a living minimum wage for all workers. In early November, the Penang branch of the Malaysian Trade Union Congress (MTUC) called on all state governments to follow the legislation passed in Selangor by adopting a minimum wage of RM1,500 for all civil servants. Key indicators show that Malaysia's economy remained sound. The annual inflation rate as of December 2011 was 3%. The unemployment rate was 3% in October of 2011. Gross Domestic Product (GDP) expanded 5.8% in the third quarter of 2011 over the same quarter in the previous year.

Human rights issues remain a serious concern. In early March, the Malaysian Home Minister said that the government had caned 29,759 foreign workers between 2005 and 2010 for various immigration offences. The Malaysian Trade Union Congress (MTUC) condemned this inhuman treatment and reminded the government that employers, especially those involved in supplying foreign labour, were often cheating ignorant foreign workers into believing that they were entering the country legally.

In late June, authorities arrested 30 activists, including one opposition MP, and accused them of conspiring to overthrow the government and to revive communist ideologies. On 9 July, in Kuala Lumpur, police arrested more than 1,600 people and used tear gas and water cannons to disperse more than 50,000 protesters marching to demand electoral reforms. Demonstrators defied a government decree that that banned the rally.

On 15 September, Malaysian Prime Minister, Najib Razak, said he was committed to repealing the Internal Security Act (ISA) and the Emergency Ordinance laws that allow indefinite detention without trial. Razak also said that police laws would be amended to allow freedom of assembly according to international norms and that the government would give more freedom to media groups. Despite the pledges of reform, on 29 November, Malaysia's parliament enacted a ban on street protests. The law replaces legislation that required a police permit for public gatherings but contains a range of new restrictions including an outright ban on street marches.

Trade union rights in law

Changes to Employment Law: On 6 October, Malaysia's lower house of Parliament, Dewan Rakyat, passed amendments to the Employment Act of 1955 which the Malaysian Trade Union Congress (MTUC) said would erode protection for workers as employers will no longer be directly responsible for the welfare of their employees. MTUC President, Mohd Khalid Atan, said that the organisation is concerned that workers under contract for labour cannot be organised into unions and noted that workers will be disadvantaged because of different standards and conditions for workers in similar positions and by being prevented from unionising and using their collective strength in negotiations. Malaysia's upper house of Parliament, Dewan Negara, had not acted on the amendments by the end of the year.

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

Secret ballot system abused: Workers opt for the union that is to represent them by mandatory secret ballot. The Immigration Department and the employers prohibit foreign workers from taking part in these elections or any union activities. The Department of Industrial Relations (DGIR), however, includes them in the overall figures for the purpose of determining union membership. This can heavily dilute the votes in favour of a union and often results in the denial of union recognition. Furthermore, according to the Regulations, workers who do not vote are considered to be against the union. Even those who have passed away are required to vote.

Inefficient disputes settlement machinery: The disputes settlement machinery remains grossly inefficient, and cases of victimisation and unfair dismissals remain unresolved for as long as five years. Such inordinate delays make a mockery of the legal protection accorded under the Industrial Relations Act.

Migrant workers face horrifying conditions:

Gross violations of migrant workers' rights have provoked a serious debate in Malaysia. In October, Cambodia imposed a ban on labour migration to Malaysia for domestic work following allegations of extreme abuse. According to Human Rights Watch, "Cambodian women and girls often have to surrender their passports to their agents or employers, making it harder for them to leave if they are mistreated. Many work for 14 to 21 hours a day without rest breaks or days off. And many are forcibly confined to their work places, are not given adequate food, and are physically and verbally abused. Some have been sexually abused by their employers. None of the workers Human Rights Watch interviewed said they had received their full salary." Under Malaysian labour law, migrant domestic workers are excluded from basic protections, such as a weekly day of rest, annual leave, and limits on working hours. Amnesty International also reported that nearly 30,000 migrant workers were caned between 2005-2010 for various immigration offenses. Caning is extremely painful, leaving lasting physical scars.

On 14 February, human rights activist Charles Hector was sued for over USD 3.2 million by electronic firm Asahi Kosei (M) Sdn Bhd for defamation after he posted on his blog reports he received from Burmese migrant workers detailing violations of labor and human rights at the company. The 31 Burmese migrants, who were employed by an employment agency that supplied the workers to Asahi Kosei, were alleged to have been paid wages far lower than promised when they agreed to migrate to Malaysia and faced numerous illegal wage deductions, among other violations. The facts of the case were not in contention; rather, Mr Hector was found liable and was forced to issue a retraction because he had associated the abuses with Asahi Kosei rather than the subcontractor, even though Asahi Kosei managed the labour of the migrant workers.

10,000 workers denied collective bargaining rights:

On 28 September, the Malaysian Trade Union Congress (MTUC) submitted a memorandum to the Ministry of Human Resources Malaysia (MOHR) listing and detailing the trade unions' struggle to achieve collective bargaining rights in nine companies involving more than 10,000 workers. According to the MTUC, as a result of MOHR's failure and inefficiency, union recognition, which is a prerequisite for collective bargaining rights, remain unresolved for seven years. The MTUC called for a review of the regulations which were often applied to delay and deny unions' claims for recognition.

Many employers refuse to respond to the Department of Industrial Relations' (DGIR) and Department of Trade Unions' (DGTU) request for information on their company's industrial activity and a list of their employees' names, despite the 2008 amendments to the Industrial Relations Act 1967, aiming to address numerous weaknesses and resolve recognition claims. In some cases employers even refuse to allow officers from the DGIR and DGTU to enter the company premises.

Furthermore, after the implementing regulations were drawn up, unions were not properly informed about the submission requirements of the new regulations. This, despite the fact that according to the DGIR, the use of the old form invalidates the claim and then unions have to withdraw their claim and wait for six months before filing a new one. This rule is considered illegal by the MTUC.

Many arbitrary rulings from the DGIR invalidated several unions' claims for recognition. This happened at Renesas Semiconductor (formerly NEC). Despite showing proof of delivery and the company's confirmation of receipt, the DGIR has ruled that since the union's claim was hand delivered by the president of the union, it was deemed invalid. The union made four unsuccessful attempts to send the claim by mail. The union subsequently reported to the DGIR that Renesas Semiconductor had refused to accept delivery.

The Electrical Industry Workers' Union's claim for recognition at the Formosa Prosonic Manufacturing and Liebherr Appliances companies remained unresolved for nearly four years and the DGIR claimed that it was powerless to do anything.

Finally, the MOHR and the DGIR have imposed a ban on picketing or any form of action to protest against employers' refusal to accord recognition.

Violations

Migrant workers struggle for rights: Malaysia has a total of 1.9 million registered migrant workers, constituting approximately 21% of the workforce, making Malaysia the largest importer of labour in Asia. It is estimated there are another 2 million undocumented migrant workers. On 1 August, Malaysia implemented an amnesty programme for its undocumented migrant workers. Under the provisions of the amnesty, those without documents were to be fingerprinted for a biometrics database and allowed to stay in Malaysia if they had a job. If they were not employed, they would be allowed to leave Malaysia by 31 October without penalty. On 30 May, Malaysia and Indonesia signed a memorandum of understanding (MoU) on migrant labour that ended a June 2009 moratorium by Indonesia on sending workers to Malaysia. Under the terms MoU, Indonesian migrant workers will have the right to retain their passports, to one day off each week, paid annual leave, and access to communications. The MoU also provided that the minimum wage for migrant workers will not be lower than in Indonesia and that overtime will be paid. On 5 May, Malaysian police arrested two Burmese migrant workers after they complained of crowded living conditions at an appliance factory. On 13 July, the Malaysian Trade Union Congress (MTUC) urged the authorities to investigate a newspaper agent who allegedly abused ten migrant workers from India and failed to pay them wages. Five out of ten men were allegedly wrongfully detained and charged in court for working illegally in the country. The MTUC instituted legal proceedings against the employer.

Dismissal of union official of the Malaysian newspaper Utusan Malaysia: On 21 April, Malaysian newspaper Utusan Malaysia (UM) dismissed senior journalist and President of the National Union of Journalists Malaysia (NUJ M), affiliated to the International Federation of Journalist (IFJ), Mr. Ha'ta Wahari, after suspending him on 11 January. The newspaper dismissed Wahari on charges of tarnishing the newspaper's image when he publicly expressed concerns about the newspaper's biased news coverage. UM is owned by UMNO, the dominant political party in Malaysia's ruling coalition.

Domestic workers face abuse and even death:

On 21 June, Deputy Human Resources Minister, Ms. Maznah Mazlan, told parliament that a total of 18,716 domestic workers ran away from their employers' homes last year. In 2010, 247,069 foreign housemaids were employed in Malaysia, with 76.7% from Indonesia. The Malaysian Trade Union Congress (MTUC) urged the government to ratify ILO Convention 189 on Domestic Workers in order to effectively address the problems encountered by migrant domestic workers in the country.

According to an MTUC survey on 510 domestic workers' (mainly Indonesians and Filipinos) wages and working conditions, 26.4% complained that they did not get their wages and 7.8% complained that they were physically and verbally abused. 90% reported that they were not given a day off, while the remaining 10% who got a day off were not allowed to leave their homes. In some cases, they were only allowed two days in a month. Furthermore, 53% were required to work more than 16 hours a day. This also included domestic workers being sent to various places to work. Despite a significant rise in wage levels, 61% have reported that their monthly wages are now paid into their bank account.

On 5 June, Indonesian domestic worker, Ms Isti Komariyah, died at the University Malaya Medical Centre. She had not been paid any salary since she began work for a couple at Taman Sea Petaling Jaya in December 2008. Police classified the case as murder and detained her employers in connection with her death. On 6 July, Ms Va Sokhoeun, 38, a domestic worker from Cambodia sought refuge in the Cambodian embassy in Malaysia. She claimed that her employer had withheld her pay for seven months and that she had been sexually assaulted. On 25 July, Cambodian embassy officials in Malaysia began an investigation into the death of a Cambodian domestic worker in Penang following allegations made last week that she was abused. In August, Malaysian rights' group Tenaganita said that it had rescued 41 domestic works from Cambodia from abusive employers.

On 14 October, Cambodia banned its citizens from going to work in Malaysia as domestic workers.

Union president dismissed at Renesas Semiconductor: On 28 August, Renesas Semiconductor (formerly NEC) dismissed the president of its workers' union for an article he published on his blog. The article merely reported on the status of the union's claim for recognition.

Yellow union at Maybank – registered by government:

On 30 January, the National Union of Bank Employees (NUBE) claimed that the government's registration of the in-house union at Maybank violated Section 12 of the Trade Unions Act of 1959 and called for the registration to be nullified. Maybank chief executive, Datuk Seri Abdul Wahid Omar, said that while 61% of Maybank employees in the clerical/non-clerical category are NUBE members, others had decided to form the Maybank Non-Executive Union (Mayneu) on 3 January.

On 21 September, NUBE accused Maybank of backing the in-house union to avoid an 80-month bonus claim for bank employees. In addition, NUBE Secretary-General J. Solomon said that Maybank's support for Mayneu was a violation of a High Court stay order on the registration of the in-house union. On 24 November, Malaysia's High Court dismissed a defamation suit brought by Maybank against NUBE. The court ruled that NUBE, as a registered trade union, cannot be sued for defamation. The court held that Section 21 and 22 (1) of the Trade Unions Act of 1959 was clear that such actions against a trade union in relation to a trade dispute "is not maintainable in any civil court nor can it be entertained by any court." The court was satisfied that there was in fact a "trade dispute" between Maybank and NUBE in reference to the insufficient bonuses provided for the lower level of staff of the bank. The court ordered Maybank to pay RM15,000 in costs to the NUBE. In its suit filed on 22 April, Maybank alleged that NUBE and its Secretary-General J. Solomon, had published articles containing defamatory statements against Maybank on the union's website earlier in the year.

Electronics and pulp workers make gains:

On 27 January, workers, a majority of them women, at ST Microelectronics in Muar, Johor, voted to join the newly formed Electronics Industry Workers' Union (Southern Region). The struggle for union representation started in August 2010, when the union filed for recognition. ST Microelectronics is an Italian-French electronics and semiconductor manufacturer headquartered in Geneva, Switzerland.

In July, the Paper & Paper Products Manufacturing Employees' Union (PPPMEU), International Federation of Chemical, Energy, Mine and General Workers' Unions (ICEM), gained ground-breaking collective bargaining agreement language on contract and agency labour (CAL) with Kimberly Clark at the company's Kluang, Johor, pulp and hygiene products mill. Kimberly Clark is a global paper products company. The new language provides that CAL workers are now covered by the provisions of the collective bargaining agreement.